Judge Scott Fairgrieve
In a prior decision the court held that landlord Vidas Cousins breached its contractual responsibility to make structural repairs and/or replace the roof of the subject premises which PB&J operated as a restaurant. PB&J stopped operating its business on Nov. 28, 2007 due to the leaks, and Vidas completed repairs on March 28, 2008. Yet, the court found PB&J was not constructively evicted. Now, Vidas argued PB&J could only recover damages for the period it stopped operating until the roof replacement was completed. PB&J argued Vidas’ failure to repair or replace the roof earlier caused it to cease operating permanently, contending it was entitled to all provable damages without a time restriction. The court disagreed ruling PB&J was entitled to recover the diminution of the rental value from Nov. 28, 2007 until March 28, 2008. It also noted PB&J may recover for loss of profits as such damages were fairly within the contemplation of the parties, but restricted to the same time period. The court stated loss of profits naturally flowed from Vidas’ breach of the covenant to repair, noting Vidas knew or had reason to know its failure to repair or replace the leaking roof could, and did cause PB&J to close its business resulting in possible loss of profits.
